[2023] KEHC 23697 (KLR)

Ngetich & 2 others v Kirui (Civil Appeal E026 of 2023) [2023] KEHC 23697 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23697 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E026 of 2023

JK Sergon, J

October 12, 2023

Between

Leonard Ngetich

1st Appellant

Gilber Kirui Bii

2nd Appellant

County Government of Kericho

3rd Appellant

and

H.E. Eng. Fredrick Kipngetich Kirui

Respondent

Ruling

1. The subject matter of this Ruling is the Notice of Motion dated 24th July, 2023 taken out by the Appellants/Applicants whereof they sought for Inter alia an Order for Stay of Execution of the ruling delivered on 18th July, 2023 and the resultant Orders pending the hearing and determination of the Intended Appeal.

2. The Applicants filed in support of the Motion the Affidavit sworn by Ngetich Leonard Kipkoech. The Respondent filed Replying Affidavit he swore to oppose the aforesaid Motion. The Applicants filed a Supplementary Affidavit sworn by Ngetich Leonard Kipkoech in response to the Replying Affidavit. When the Motion came up for interpartes hearing, this Court gave directions to have the same disposed of by Written Submissions.

3. It is the Submission of the Appellants that on 18th July, 2023, the Chief Magistrate’s Court issued an Interlocutory Mandatory Order of Injunction to compel them to disburse the Respondent’s Mortgage sum of Kshs 19,000,000/= together with costs of the application dated 7th July, 2023.

4. The Appellants aver that they are aggrieved by the aforesaid Ruling and that they intend to file an Appeal against the same. They now seek for an order for Stay of Execution of the Order pending the hearing and determination of the Appeal.

5. The Appellants aver that unless the Order for Stay of Execution is granted, their Officer will be made to comply with an illegal procedure while they have not exhausted all avenues to appeal against the Ruling.

6. They also stated that unless the Order for Stay is granted, the Intended Appeal will be rendered nugatory thus causing the applicants to suffer substantial loss.

7. In response to the appellants’ arguments, the Respondent urged this Court to dismiss the Appellants’ Application stating the Application does not meet the threshold set under Order 42 Rule 6 of the Civil Procedure Rules.

8. The Principles to be considered in determining an Application for Stay of Execution are well settled. First, the Application must be made without unreasonable delay. Secondly, the Applicant must show that unless the Order for Stay is granted, he would suffer substantial loss. Thirdly, Security should be provided for the due performance of the decree or order sought to be stayed.

9. The decision sought to be stayed was issued on 18th July, 2023 while the instant Application was filed on 24th July, 2023. It is clear that the Application was timeously filed.

10. The question as to whether or not the applicants would suffer substantial loss was ably submitted on by both sides in this dispute. The applicants aver that unless the Order for Stay is granted, they will be forced to disburse the Mortgage Funds to the Respondent through an illegal procedure.

11. There is no doubt that if the Order for Stay is not granted, the Appellants must comply with the Mandatory Order of Injunction and proceed to disburse the Mortgage sum to the Respondent. So what substantial loss would the Appellants suffer?

12. It is clear from the Appellants’ pleadings and submissions that the Appellants have not demonstrated that if they disbursed the Mortgage funds as ordered by the Trial Court, they would suffer substantial loss which cannot be compensated by way of damages.

13. There is also no evidence that the Appeal would be rendered nugatory if the Order for Stay is denied.

14. The cornerstone of an Application for Stay of Execution is the substantial loss that may occur if the Order is denied. In this Application, the appellants have failed to demonstrate the substantial loss, they would incur if the order is denied, therefore they are not entitled to the Order for Stay.

15. The Third Principle is in respect of Security to be provided for the due performance of the decree. The Appellants have expressly stated that Security is not required from the Government or from any Public Officer sued in respect of an act alleged to be done by him in his official capacity.

16. Where an Applicant does not offer to provide Security, the Court still retains the discretion to make Orders requiring such a party to provide Security for the due performance of the decree.

17. In the instant case, I am persuaded by the Appellants’ argument that Security is inapplicable to the Government Agency such as the Appellants.

18. I have come to the conclusion that the Appellants having failed to establish the substantial loss they would suffer if the Order for Stay is denied, therefore the Application dated 24th July, 2023 is for dismissal. Consequently, the Motion dated 24th July, 2023 is hereby dismissed.

19. Costs of the Application to abide the outcome of the Appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH OCTOBER, 2023J.K. SERGONJUDGEIn the presence of:C/Assistant – Mr. RutohNo Appearance for the Parties